Citation Nr: 0108046
Decision Date: 03/19/01 Archive Date: 03/26/01
DOCKET NO. 00-04 339 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Columbia,
South Carolina
THE ISSUES
1. Whether new and material evidence has been submitted to
reopen a claim for service connection for a back disability.
2. Whether new and material evidence has been submitted to
reopen a claim for service connection for hypertension.
REPRESENTATION
Appellant represented by: The American Legion
WITNESSES AT HEARING ON APPEAL
Appellant and spouse
ATTORNEY FOR THE BOARD
M. Ferrandino, Associate Counsel
INTRODUCTION
The veteran had active duty from November 1977 to February
1987.
The veteran filed a claim in March 1987 for service
connection for high blood pressure and back pain. By rating
decision in June 1987 service connection for history of
hypertension with headaches and history of low back strain
was denied. The veteran was notified of that decision by
letter of that same month. In November 1999, the veteran
filed a request to reopen his claim for service connection
for high blood pressure, hypertension, and a back problem.
This appeal arises from a January 2000 rating decision from
the Columbia, South Carolina Regional Office (RO) that
determined that new and material evidence to reopen the
veteran's claim for service connection for a back disability
and for high blood pressure/hypertension had not been
submitted. A Notice of Disagreement was filed in February
2000 and a Statement of the Case was issued in February 2000.
A substantive appeal was filed in February 2000 with a
request for a hearing at the RO before a local hearing
officer. Additionally in March 2000, the veteran requested a
hearing at the RO before a local hearing officer. In May
2000, the abovenoted RO hearing was held.
The issue of whether new and material evidence has been
submitted to reopen a claim for service connection for a back
disability is the subject of the Remand decision below.
FINDINGS OF FACT
1. By rating decision dated in June 1987, the RO denied
service connection for hypertension. The veteran was
notified of that decision in that same month.
2. The veteran did not file a timely substantive appeal to
that determination, and it became final.
3. The additional evidence submitted in connection with the
claim has not been considered previously and is so
significant that it must be considered with all the evidence
of record to fairly decide the claim for service connection
for hypertension.
4. It is at least as likely as not that hypertension had its
onset during the veteran's military service.
CONCLUSIONS OF LAW
1. The June 1987 decision of the regional office that denied
service connection for hypertension is final. 38 U.S.C.A.
§ 7105(c) (West 1991); 38 C.F.R. §§ 3.104, 20.302 (2000).
2. Evidence received since the June 1987 RO decision is new
and material, and, thus, the claim for service connection for
hypertension is reopened. 38 U.S.C.A. § 5108 (West 1991);
38 C.F.R. § 3.156(a) (2000).
3. Hypertension was incurred in service. 38 U.S.C.A.
§§ 1101, 1112, 1113, 1131, 1137, 5107(a) (West 1991 and Supp.
2000); 38 C.F.R. 3.303, 3.307, 3.309 (2000).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. Factual Background
On a service enlistment examination in October 1977, no
history of high blood pressure was reported. On examination,
the veteran's heart, chest and lungs, and vascular system
were clinically evaluated as normal. The veteran's blood
pressure was 134/86.
In June 1983, the veteran was seen for complaints of fever
and swollen feet. His blood pressure was 140/106. The
diagnosis/assessment included cellulitis and contact
dermatitis.
In February 1985, the veteran was seen for a weight
evaluation. He reported that he did not have elevated blood
pressure and did not take medication for elevated blood
pressure.
In June 1985, the veteran was seen with complaints of low
back pain for one day. His blood pressure was 137/68. The
assessments included lumbar strain.
In October 1985, the veteran was seen with complaints of
diarrhea with headache for three days. His blood pressure
was 130/90. The assessment included rule out viral syndrome
with minor dehydration.
In November 1985, the veteran was seen with complaints of an
upset stomach, diarrhea, and fever for two days. His blood
pressure was 160/92. The assessment included viral syndrome.
Three days later in November 1985, the veteran was seen with
complaints of diarrhea for one week. His blood pressure
readings were 126/100, 140/100, 138/140 [sic]. The
assessment included gastroenteritis.
Three days later in November 1985, the veteran was seen with
complaints of persistent diarrhea and one episode of emesis.
His blood pressure readings were 140/110, 132/92, and
136/106. The assessment included prolonged diarrhea,
question viral versus bacteria versus parasitic.
In May 1986, the veteran was seen for a weight evaluation.
He reported that he did not have elevated blood pressure and
did not take medication for elevated blood pressure.
In December 1986, the veteran was seen with complaints of
cold. He had a fever, muscle aches, headaches, sinus
congestion, sore throat, and ringing in the ears for one day.
His blood pressure was 160/106.
In February 1987, the veteran was seen for blood pressure
check for clearing. His blood pressure in the right arm was
140/94 and in the left was 143/98. The assessment included
hypertension. He had three days left of active duty. It was
indicated that they were unable to follow up. It was
recommended that the veteran follow up with the VA.
In March 1987, the veteran filed a claim for service
connection for high blood pressure.
On a VA examination in April 1987, the veteran reported that
he was diagnosed as having hypertension at the time of his
discharge from the service. He was told by the service
physician that he would not be put on treatment as he was
being discharged and would be treated by VA doctors when he
saw them. He was currently on no medication and did have
occasional intermittent headaches. He denied other
symptomatology. The blood pressure readings were 128/88
sitting; 130/86 recumbent; and 125/90 standing. The
diagnoses included history of hypertension.
By rating action of June 1987, service connection for
hypertension was denied. The RO determined that the
disability was not found by evidence of record. The veteran
was notified of this decision in that same month.
Evidence received subsequent to the June 1987 rating action
includes the following:
In November 1999, the veteran submitted copies of service
medical records including a portion of a separation
examination from January 1987, wherein the veteran's heart,
chest and lungs, and vascular system were clinically
evaluated as normal. Additionally, a record of a blood
pressure check from January 1987, includes that on the first
day, the veteran's blood pressure in the right arm was 136/92
and in the left arm it was 142/106; in the afternoon, it was
130/90 in the right arm, and 138/90 in the left arm. On the
second day, in the morning, in the right arm it was 150/102,
and in the left was 150/100; in the afternoon it was 146/100
in the right arm and 148/98 in the left. On the third day,
in the morning, it was 150/106 in the right arm and 144/98 in
the left arm; in the afternoon it was 154/84 in the right arm
and 164/90 in the left arm.
In November 1999, the veteran filed a request to reopen his
claim for service connection for disabilities to include
hypertension.
Also received in November 1999, were treatment records from
Brandon Sick, M.D., dating from June 1998 to November 1998
where it was indicated that the veteran was treated for
disabilities to include hypertension, fairly well controlled.
Included in the claims file in November 1999 was a November
1999 VA treatment record that included that the veteran's
blood pressure readings were 171/84 and 167/85.
By rating action of January 2000 it was determined that new
and material evidence to reopen the claim for service
connection for hypertension had not been submitted. The
current appeal to the Board arises from this action.
At the RO hearing in May 2000, the veteran and his spouse
testified regarding a disability not at issue. Additionally,
the veteran and his spouse testified that he had elevated
blood pressure in service. He reported that he was first put
on medication in 1998 by Dr. Sick. He reported that he had
VA treatment immediately after service but was not put on
medication. He did not follow through with treatment after
that. He was currently on medication for hypertension
prescribed at a VA Medical Center.
Included in the claims folder in July 2000 were VA treatment
records from May 1987 to October 1987 that include that in
May 1987 the veteran was seen requesting a blood pressure
check as advised by the Winston-Salem RO, claims department.
He was not on medication. His blood pressure was 130/90 in
the left and 144/100 in the right. A re-check approximately
one hour later showed 164/94 in the left and 140/96 in the
right. The diagnoses included mild hypertension.
In May 1987, the veteran's blood pressure was 170/110. The
diagnoses included hypertension.
In June 1987, it was indicated that the veteran was not on
any medication. His blood pressure was 150/90. The
assessment included hypertension.
Included in the claims file in July 2000 were service records
of the veteran not relevant to the current issue.
II. Analysis
A decision by the RO shall be final and binding on all field
offices of the Department of Veterans Affairs as to
conclusions based on the evidence on file at the time VA
issues written notification of the decision. A final and
binding agency decision shall not be subject to revision on
the same factual basis except by duly constituted appellate
authorities or except where there is clear and unmistakable
error in the decision. 38 U.S.C.A. § 7105 (West 1991); 38
C.F.R. §§ 3.104, 20.1103 (2000).
Section 5108 of title 38 of the United States Code provides
that, "[i]f new and material evidence is presented or
secured with respect to a claim which has been disallowed,
the Secretary shall reopen the claim and review the former
disposition of the claim." The regulations provide that new
and material evidence means evidence not previously submitted
to agency decisionmakers which bears directly and
substantially upon the specific matter under consideration,
which is neither cumulative nor redundant, and which by
itself or in connection with evidence previously assembled is
so significant that it must be considered in order to fairly
decide the merits of the claim. 38 C.F.R. § 3.156(a) (2000).
Caselaw provides for a three-step analysis when a claimant
seeks to reopen a final decision based on new and material
evidence. First, it must be determined whether new and
material evidence has been presented under 38 C.F.R. §
3.156(a); second, if new and material evidence has been
presented, it must be determined immediately upon reopening
whether, based upon all the evidence and presuming its
credibility, the claim as reopened is well grounded pursuant
to 38 U.S.C.A. § 5107(a); and third, if the claim is well
grounded, the merits of the claim must be evaluated after
ensuring the duty to assist under 38 U.S.C.A. § 5107(b) has
been fulfilled. See Hodge v. West, 155 F.3d 1356 (Fed. Cir.
1998) and Winters v. West, 12 Vet App 203 (1999) (en banc).
It is noted that legislation was enacted subsequent to these
cases which eliminated the well grounded claim requirement.
See Veterans Claims Assistance Act of 2000, Pub. L. No. 106-
475, § 7, subpart (a), 114 Stat. 2096 (2000).
The Board notes that, until recently, caselaw of the Court
mandated that an additional question had to be addressed;
that is, whether in light of all the evidence of record,
there was a "reasonable possibility that the new evidence,
when viewed in the context of all the evidence, both new and
old, would change the outcome" in the prior determination.
See Colvin v. Derwinski, 1 Vet. App. 171, 174 (1991). This
additional test was overruled in the Hodge case cited above.
The evidence submitted since the June 1987 rating action
includes VA treatment records from 1987, within one year of
the veteran's separation from service, indicating treatment
for hypertension as well as recent records from Dr. Sick
indicating current treatment for hypertension. This evidence
is sufficient to reopen the veteran's claims for service
connection for hypertension. The evidence is new in that it
has not been considered previously and it is not cumulative
of evidence already of record. It is also material as it
bears directly and substantially upon the matter under
consideration and is so significant that it must be
considered in order to fairly decide the merits of the claim.
Having found that the evidence is new and material and must
be considered in conjunction with all the evidence of record,
the VA has a duty to assist the veteran in the development of
facts pertaining to his claim. This includes obtaining
relevant private and VA medical records and providing the
veteran with VA examinations, where, as in this case, such
examinations may substantiate entitlement to the benefit
sought. See Veterans Claims Assistance Act of 2000, Pub. L.
No. 106-475, § 3(a), 114 Stat. 2096 (2000) (to be codified at
38 U.S.C. § 5103A) for the specific requirements for
developing claims.
Further, the Board notes that the reopening of the veteran's
claim raises a due process issue which was addressed by the
Court in Bernard v. Brown, 4 Vet. App. 384 (1993). Pursuant
to Bernard, the Board must consider whether addressing the
veteran's claim on a de novo basis would cause prejudice to
the veteran if it was not so considered by the RO. In light
of the decision in this case, any potential prejudice to the
veteran precipitated by the reopening of this claim will be
rendered moot.
Service connection means that the facts, shown by evidence,
establish that a particular injury or disease resulting in
disability was incurred in the line of duty in the active
military service or, if preexisting such service, was
aggravated by service. 38 U.S.C.A. § 1131 (West 1991); 38
C.F.R. § 3.303(a) (2000). Where a veteran served 90 days or
more during a war period or after December 31, 1946 and
cardiovascular disease becomes manifest to a degree of 10
percent within 1 year from date of termination of such
service, such disease shall be presumed to have been incurred
in service, even though there is no evidence of such disease
during the period of service. This presumption is rebuttable
by affirmative evidence to the contrary. 38 U.S.C.A.
§§ 1101, 1112, 1113, 1137 (West 1991 and Supp. 2000); 38
C.F.R. §§ 3.307, 3.309 (2000).
In this case, the veteran had elevated blood pressure
readings in service. At separation, a provider instructed
him to go to the VA regarding hypertension. While on the VA
examination shortly after service, the veteran's blood
pressure readings were normal, VA treatment records from
within one year after service demonstrate that the veteran
had hypertension. Current treatment records from Dr. Sick
continue to show that the veteran has hypertension.
Therefore, the totality of the evidence indicates that it is
at least as likely as not that the veteran's current
hypertension was incurred in service.
ORDER
Entitlement to service connection for hypertension is granted
REMAND
Whether new and material evidence has been submitted
to reopen a claim for service connection for a back
disability
There has been a significant change in the law during the
pendency of this appeal. On November 9, 2000, the President
signed into law the Veterans Claims Assistance Act of 2000,
Pub. L. No. 106-475, 114 Stat. 2096 (2000) [hereinafter
referred to as the Act]. Among other things, this Act
eliminates the concept of a well-grounded claim, redefines
the obligations of the Department of Veterans Affairs (VA)
with respect to the duty to assist, and supercedes the
decision of the United States Court of Appeals for Veterans
Claims in Morton v. West, 12 Vet. App. 477 (1999), withdrawn
sub nom. Morton v. Gober, No. 96-1517 (U.S. Vet. App. Nov. 6,
2000) (per curiam order), which had held that VA cannot
assist in the development of a claim that is not well
grounded. This change in the act is applicable to all claims
filed on or after the date of enactment of the Veterans
Claims Assistance Act of 2000, or filed before the date of
enactment and not yet final as of that date. Veterans Claims
Assistance Act of 2000, Pub. L. No. 106-475, § 7, subpart
(a), 114 Stat. 2096 (2000). With regard to new legislation
or VA issue, the Court of Veterans Appeals has held that
where a law or regulation changes after a claim has been
filed or reopened but before the administrative or judicial
process has been concluded, the version most favorable to the
appellant generally applies. Karnas v. Derwinski, 1 Vet.
App. 308 (1991). Because of the changes in the notice and
duty to assist provisions brought about by this Act, a remand
is required.
Initially, it is noted that all of the veteran's service
medical records are not included in the claims file. The
veteran has submitted copies of service medical records not
included in the originals associated with the claims file,
including the front page of a January 1987 separation
examination. Therefore, an attempt should be made to obtain
originals of all of the veteran's service medical records.
Additionally, any treatment records since the veteran's
service, both private and VA, not already of record should be
obtained, including from Brandon Sick, M.D., and the
Fayetteville, North Carolina; Raleigh, North Carolina; and
Columbia, South Carolina VA Medical Centers. An attempt
should be made to get records from Lee County Hospital or
from where those records have been transferred, as noted at
the May 2000 RO hearing.
Following this development, if appropriate, a VA orthopedic
examination regarding a back disability should be scheduled.
The duty to assist requires providing a VA examination where,
as in this case, such examinations may substantiate
entitlement to the benefit sought.
Accordingly, the case is being Remanded for the following
actions:
1. The RO must review the claims file
and ensure that all notification and
development actions required by the
Veterans Claims Assistance Act of 2000,
Pub. L. No. 106-475, 114 Stat. 2096
(2000) are completed. In particular, the
RO should ensure that the new
notification requirements and development
procedures contained in sections 3 and 4
of the Act (to be codified as amended at
38 U.S.C. §§ 5102, 5103, 5103A, and 5107)
are fully complied with and satisfied.
The notification to the veteran should
include, but not be limited to, a request
that he submit new and material medical
evidence that a current back disability
had its onset in service.
2. The RO should make an attempt to
secure all of the originals of the
veteran's service medical records through
official channels, including the January
1987 separation examination. Inquiry
should also be made of the veteran as to
whether he has service medical records in
his possession. If so, he should forward
all records to the RO.
3. The RO should obtain the names and
addresses of all medical care providers
who treated the veteran for a back
disability since service. After securing
the necessary release, the RO should
obtain these records, to include those
from Brandon Sick, M.D., and the
Fayetteville, North Carolina; Raleigh,
North Carolina; and Columbia, South
Carolina VA Medical Centers. An attempt
should be made to get records from Lee
County Hospital or from where those
records have been transferred.
4. The veteran's request to reopen his
claim for entitlement to service
connection for a back disability should
be reevaluated. If it is determined that
new and material evidence has been
submitted, the veteran should be
scheduled for an appropriate examination.
The examiner should be asked to determine
if it is at least as likely as not that
any current back disability had its onset
in or is otherwise related to military
service. If the decision remains adverse
to the veteran, all interested parties
should be issued a supplemental statement
of the case. This should include a
discussion of all evidence received since
the last statement of the case was
issued. The appropriate current criteria
should be used in discussing the new and
material issue.
Thereafter, the case should be returned to the Board, if in
order. The appellant has the right to submit additional
evidence and argument on the matter or matters the Board has
remanded to the regional office. Kutscherousky v. West, 12
Vet. App. 369 (1999).
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans' Appeals or by the United States Court of
Appeals for Veterans Claims for additional development or
other appropriate action must be handled in an expeditious
manner. See The Veterans' Benefits Improvements Act of 1994,
Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994),
38 U.S.C.A. § 5101 (West Supp. 2000) (Historical and
Statutory Notes). In addition, VBA's Adjudication Procedure
Manual, M21-1, Part IV, directs the ROs to provide
expeditious handling of all cases that have been remanded by
the Board and the Court. See M21-1, Part IV, paras. 8.44-
8.45 and 38.02-38.03.
Iris S. Sherman
Member, Board of Veterans' Appeals